' Dispute in this case is in respect of 31 kanals and 11 marlas of land bearing Khasra Nos. 1003 to 1006 of village Sirranwali, Tehsil = Daska, District Sialkot. This land belongs to petitioners. Respondents Nos. 2 and 3, WAPDA and Project Director, WAPDA wanted to construct a grid station Chak Nizam on this piece of land. At the instance of said respondents, Collector Sialkot. District, issued notification under section 4 of Land Acquisition Act on 12-12-1979.
2. The petitioners filed a Writ Petition No, 3509/80 on 12-4-1980 challenging by means of it, the legality of the said notification inter alia on the ground that the description of the land in dispute had not been correctly given in the said notification. On 13-9-1980 report was called for in this writ petition. After the receipt of report, the writ petition was taken up for adjudication on 1-4-1981 and was dismissed as one without merits. The point that after issuance of the notification by the Collector, Sialkot District, no action had been taken for construction of grid station and thus the very efficacy of the object of notification had vanished by lapse of time had not been raised in the writ petition but from the circumstance that the said point was taken note of in the order by virtue of which writ, petition w,as disposed of, it appears, that this point was urged, for the first time at the hearing of the said writ petition only. While dismissing the writ petition my learned brother Manzoor Hussain Sial, J. Had observed that he was unable to agree (with either of the two points urged before him). As for first point it was rejected on the ground that minor inaccuracies in the description of the land did not cause serious prejudice to the petitioners so as to annul the notification and that petitioner remained fully aware about the move of the respondents to acquire the land in dispute for the construction of a grid station. As for the other point (which was clearly agitated at the hearing only and on which no report and comments from department were available) namely, that due to lapse of time and inactivity of the respondents to proceed further in the completion of project, the notification itself had lost its efficacy, it was observed that if so advised the petitioners may approach the D. C./Collector in the matter.
3. The petitioners then filed on 5-5-1981 I.-C. A. No, 213 of 1981 but they withdrew the same on 12-10- 1981.
4. In the meantime, however, a notification under section 17 (4) of the Land Acquisition Act, dated 12-9-1981, issued by the Commissioner, Lahore Division, Lahore was published in Punjab Gazette dated 23-9-1981 for acquisition of the land on urgent basis.
5. The petitioners have again come to this Court against the said notification under section 17 (4) of Land Acquisition Act. They say that on account of publication of the said notification, they have been debarred from making objections as regards alternate land, non-existence of public purpose and need to acquire the land in question and other objections contemplated by said section 5-A and only grounds which are now available to them are measurement of land acquired and amount of compensation. They say that irreparable loss has been caused to them by publication of this notification. Their learned counsel has raised the following contentions to challenge the legality of the said notification :-
(i) That WAPDA as constituted by Water and Power Development Authority Act, 1958, is a company as defined in section 3 (e) of Land Acquisition Act and, therefore, under mandatory provision made in section 39 of the said Act, no notification under section 17 (4) of the Act could have been issued without complying with conditions laid down in said section namely grant of consent by the Government and execution of agreement by the WAPDA with the Government in regard to the use of land to be acquired for it and none of the conditions having been satisfied, the said notification under section 17 (4) of the Act was without lawful authority.
(ii) That the impugned notification had been issued with an intention to frustrate the object of observations made by this Court in earlier writ petition regarding petitioners' right to approach the Collector.
(iii) That in any case there was no such urgency as justified issuance by the Commissioner of a notification under section 17 (4) of Land Acquisition Act, 1894.
(iv) That there was no material before the Commissioner, Lahore Division Lahore to come to the conclusion that there was urgency in the matter and that there was no application of mind by him to the facts and circumstances of the case and as such the said notification was void.
6. I have heard the learned counsel for the petitioners and have heard the learned counsel for respondent WAPDA as well as Land Acquisition Collector and representative of Commissioner. I have also perused the record of the case and looked into the record of Land Acquisition Collector and Commissioner, Lahore Division, Lahore, also. I proceed to deal with the contentions in the order in which they have been raised.
7. As for the first point, before deciding the same, it is necessary to adjudicate whether or not WAPDA is a company within the meaning of the words as defined in section 3 (e) of the Land Acquisition Act which reads as follows :
3. Definitions.-In this Act, unless there is something repugnant in the subject or context.
(e) The expression 'company' means a company registered under the Indian Companies Act, 1882 or under the (English) Companies Acts, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by any Pakistani Law or by a Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Co-operative Societies Act, 1912."
The Indian Companies Act, 1882 has been replaced by Companies Act, 1913. Further according to Black's Law Dictionary word 'incorporate' means to create a corporation (i. e. a body with quality of perpetual existence and succession except as limited by the act of incorporation). According to tit Wharton's Law Lexicon fourteenth edition, legal meaning of term 'incorporated' is 'united in a legal body' and 'incorporation' means formation of a legal body with the quality of perpetual existence or succession except as limited by the Royal Charter or Act of Parliament affecting the corporation.
Further in Law Terms and Phrases by Sardar Muhammad Iqbal Mokal, incorporation has been shown to mean formation of a legal or political body with quality of perpetual existence and succession except so far as limited by act of corporation. Further as shown by sections 262, 263, 24 and 25 of the Companies Act, 1913, registration of a company under the said statute confers the status of a corporation with perpetual succession and a common seal on a company already formed. Therefore, taking all these meanings into consideration, the relevant portion of section 3
(e) would read below :- 3(e) Expression company means a company which has been conferred the status of a corporation under Companies Act, 1913 or constituted as a Corporation by a Pakistani law.
It is notable that the word 'under' has been used in the definition in sharp contrast to the word 'by'.
An attempt to show the difference between the two has been made in Wharton's Law Lexicon wherein it is given under the word incorporation that Municipal Borroughs are incorporated by their Charters County Councils by Local Government Act. However, the distinction between N the two words has been brought out with great clarity in Stroud's Judicial Dictionary, 3rd Edn. At page 373, under the word 'by' where it has been said that a company incorporated 'by' an Act of Parliament means, one which is brought in existence by an Act of Parliament and does not include a company incorporated 'under' an Act. Taking all the above into consideration, in my opinion there are two types of companies. First type are those which are conferred the status and attributes of corporation on satisfaction of certain prerequisites prescribed in, and registration of the company under the Companies Act 1913. There are others which owe their very origin and birth to a statute or an Act of Legislature irrespective of their complying with any prior condition.
8. In the light of above deductions we may now examine whether WAPDA is a company which has been conferred the status of a corporation on the fulfilment of any prior condition prescribed under Companies Act or is a company incorporated by a Pakistani Law.
9. Section 253 of Companies Act, 1913 gives a list of companies which can be registered. WAPDA does not fall in any of them. It is common knowledge that it is not registered under the Companies Act, 1913 and is not conferred the attributes of a corporation on the fulfilment of any conditions by it.
On the other hand the perusal of WAPDA Act, 1958 shows it is not formed first and then conferred the status of a corporation as is the position of Companies registered under Companies Act but its birth and incorporation are contemporaneous. It is born as a corporation by virtue of provision made in the WAPDA Act, 1958, section 3 of WAPDA Act, 1958 says that there shall be established an authority to be known as Water and Power Development Authority and it shall be a body corporate ; shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by name sue or be sued. Therefore, WAPDA is obviously a body which has been incorporated by WAPDA Act, 1958 or in other words it is constituted as a corporation or corporate body by virtue of law which has created it. Therefore, though WAPDA is not a company registered under Companies Act, it is a company incorporated by a Pakistani Law. It is, therefore, included in the word 'company' as defined in section 3 (e) of Land Acquisition Act, 1894.
10. Here the learned counsel for WAPDA respondent has contended that even in respect of bodies incorporated by a Pakistan Law, it is only a Company which has been incorporated by a Pakistani Law which can be considered to be covered by the definition of the word company. His plea is that by virtue of WAPDA Act, 1958 WAPDA is incorporated as an authority and not as a company while definition of company as given in section 3 (e) of Land Acquisition Act, 1894 applies only to companies incorporated under a Pakistani Law and, therefore, WAPDA does not fall within the ambit of word `company' as defined in Land Acquisition Act, 1894. I have given my anxious thought to this question also and am of the view that the word 'company' as available in the body of definition has been used in its ordinary sense of union of persons and not in its technical sense. In Law Terms and Phrases by Sardar Muhammad Iqbal Mokal word 'company' has been shown to mean an association of two or more individuals united for one or more common objects. In Black's Law Dictionary fifth edition meaning given to it is a union or association of persons for carrying on a commercial or industrial enterprise. In Words and Phrases Legally Defined, Second Edition by John B. Sanders and published by Butterworth's, London it has been given that the word `company' imparts an association of number of individuals formed for some common purpose. Therefore, the definition of word 'company' as given in section 3 (e) is not confined to a company in its technical sense but extend to its generic sense of being an association of persons united for a common purpose. Now according to section 4 of WAPDA Act, 1958, Authority is to consist of a Chairman and not more than three members appointed by the Government. It is obvious that under the policy of law for or less number of persons have been made to join for the common purpose of fulfilling the objects of WAPDA. Therefore, the WAPDA is a company within the meaning E of the word 'company' as used in body of section 3 (e). The contention of learned counsel for respondent WAPDA has no force and the same is repelled. It is thus established that WAPDA falls within the purview of definition of company as given in section 3 (e) of Land Acquisition Act, 1894.
11. The next question now, is whether without the previous sanction of the Commissioner and without the WAPDA having executed an agreement with the Commissioner as required by section 39 of Land Acquisition Act, notification under section 17 (4) could have been issued or not.. Section 39 appears to put a clear embargo on the powers of the Commissioner to issue notification under section 17 (4) before conditions prescribed in section 39 are satisfied. The learned counsel for the petitioners has referred me to case of Peoples Co-operative Housing Society Ltd., Lahore v.
Collector Lahore District and 4 others (1) wherein it has been held that compulsory acquisition of land whether for company or for Government is justified only for a public purpose and the notification under section 17 (4) without the company having complied with the conditions laid down in section 39 of the Land Acquisition Act, 1894 is without lawful authority. It is, however, to be noted that there is another decision on the subject viz. That of Mian Abdul Wahid and another v.
Collector Sheikhupura and 2 others (2) wherein it had been laid down that where land is sought to be acquired for public purpose for a company simpliciter, execution of agreement between the Government and the Company and the consent of the Provincial Government is not necessary prior to the notice under section 17 (4) of Land Acquisition Act, 1894. Both are Single Bencb cases.
Obviously there is serious clash between the said two Single Bench cases. However, I note that the case of Mian Abdul Wahid ante is based upon and is supported by a D. B. Decision of this court made in case of Ch. Khwhi Muhammad v. Commissioner, Multan Division, Multan and 3 others (3) in which it has been laid down that in case of acquisition of land for the benefit of company simpliciter where the need for acquisition is for a public purpose, the provisions of section 17 (4) would be properly invoked to dispense with application of sections 5 and 5-A before consent of Government and before the execution of agreement as required by section 39 of Land Acquisition Act. I am bound by said D. B. Decision of this court and respectfully following the same hold that in case acquisition of land is for a company simpliciter and G is also for a public purpose, compliance with conditions laid down in section 39 of Land Acquisition Act is not necessary before invoking power under section 17 (4) of Land Acquisition Act.
12. I am aware of the circumstance that the case of Mian Abdul Wahid was considered in case of Peoples Housing Co-operative Society which was decided later but even then I think the D. B.
Decision of this court which had been relied upon in case of Mian Abdul Wahid, is binding upon me.
Furthermore, I am also aware that said D. B. Case of this court was decided before the amendment of Land Acquisition Act by W. P. Ordinance XLIX of 1969. But in case of Peoples Co-operative Housing Society v. Collector, Lahore District and 4 others, the state of law before the said amendment had also been taken into consideration. Furthermore, the amendments made by said Ordinance had not brought about any such change as was material for the purpose of {{FOOT NOTE}}
(1) 1979 CLC 180 (2) PLD 1973 Lah. 739
(3) PLD 1965 Lah, 250 {{FOOT NOTE}} ' decision of the point in question. Therefore, there is no reason for me not to follow the said D. B.
Decision.
13. Now construction of 66/11 K. V. Grid station for feeding electricity to public for domestic, agricultural and industrial use for development of locality at large is obviously a public purpose. As a matter of fact no arguments are necessary to come to the conclusion that construction of grid station is for a public purpose. It is mentioned specifically in the notification of Commissioner under section 17 (4) of the Land Acquisition Act that said land is required to be taken by the Government for WAPDA at public expense for a public purpose. The learned counsel for petitioner also concedes that it is public purpose. In this case, therefore, acquisition was for a company simpliciter for a public purpose.
14. In this view of the matter, respectfully, following the D. B. Decisio referred to above, I hold that in the present case, non-compliance with conditions laid down in section 39 of Land Acquisition Act was no bar for the" Commissioner to exercise power under section 17 (4) of Land Acquisition Act and the said notification issued by him under section 17 (4) of Land Acquisition Act is not without lawful authority.
15. As for point No, 2, I do not think that the intention of the Commissioner in issuing the said notification under section 17 (4) was to frustrate the object of the observation made by this court in writ petition No, 3509/80, regarding the right of the petitioners to approach the Collector. My learned brother M. H. Sial, J. Had made the observation while dismissing the writ petition. He had considered the contentions raised by the learned counsel but had found himself unable to agree.
He then proceeded to the first point raised in that writ petition and rejected it. As for the other point raised at the hearing of the writ petition namely that due to lapse of time and inactivity of respondent to proceed further in the completion of the project, the notification had itself lost the efficacy, he observed that the petitioner it so advised may approach the D. C./Collector, Sialkot, for the matter. It appears from this observation that the learned Judge was of the opinion that since the said point had not been raised in writ petition, he could not adjudicate upon it or that even if it is assumed that WAPDA had taken no immediate action after the issue of the notification under section 4 of Land Acquisition Act as alleged, it had made no violation of any principle or provision of law on which writ prayed for could be issued and, therefore, if so advised petitioner may approach D. C./Collector for any relief which that functionary may be in a position to give to the petitioner. This finding was not agitated against in I. C. A. Filed by the petitioners after the dismissal of the said writ petition and apart from that the I. C. A. Itself had been withdrawn and, therefore, the rejection of the point in question by my learned brother had, achieved finality. Therefore, so far as this Court is concerned, the point stood repelled and had come to an end. The observation added to the order of rejection of this point was only casual. In making the said observation I do not think any order of mandatory nature had been passed by this court. The said observation was not in the nature of any direction to the D. C./ Collector. I do not think that it conferred any right on petitioner which can be said to have been frustrated by issuance of notification under section 17 (4) of Land Acquisition Act. Furthermore, it must be noted that writ petition was dismissed in limine without calling the respondent Land Acquisition Collector who must be in dark about it. On perusal of the file of Land Acquisition Collector, I find that the factum of dismissal of the writ petition became known to the representative of Land Acquisition Collector on 2-5.1981, It is obvious from noting dated 2-5-1981 that copy of the same was not available with the said representative of Land Acquisition Collector on that day, and it is on 4-5-1981 that draft notification under section 17 (4) of Land Acquisition Act is shown in the said file to have been added for necessary action. It is clear, therefore, that neither Land Acquisition Collector nor WAPDA was aware of said observation of the learned Judge in his order in the said writ petition when the former acted in the matter for issue of a notification under section 17 (4) of Land Acquisition Act. The second point has also, therefore, no force. The notification, therefore, cannot be considered to have been issued rnala fide.
16. As for points Nos. 3 and 4, in my opinion the word 'opinion' as used in section 17 (4) of Land Acquisition Act imports only subjective satisfaction of the Commissioner that the situation as contemplated in section 17 (1) of Land Acquisition Act is available i. e. The urgency is existing and, therefore, the same is not subject to judicial review by this Court. In section 17 (4) o even in section 17 (1) of Land Acquisition Act no precondition is prescribed for compliance by the Commissioner before he arrives at the conclusion that there is urgency and the Legislature has in its wisdom given the Commissioner absolute and unqualified power to declare that there was urgency. The opinion of the Commissioner in respect of existence of urgency is unfettered and untramelled, and a Court of law cannot enquire into the grounds or reasons which led the said authority to arrive at the opinion. The act of the Commissioner is an executive act and not a judicial act and Commis sioner has been made the sole Judge of the existence of urgency under sec-J t;on 17 (4). For issuance of a notification under section 17 (4) of Land Acquisition Act, the only condition precedent is that the Commissioner should come to an opinion that situation as contemplated in subsection
(1) of section 17 of Land Acquisition Act exists or in other words urgency exists. If the Commissioner has formed the opinion then the law precludes the Court from substituting its own opinion for that of the Commissioner or from enquiring into the validity of the grounds on which opinion was formed. I am fortified in this view of the mine by a decision of this Court in case of Ghulam Bhi v.
Government of West Pakistan (1) in which in answer to the plea that there was no urgency involved in the case to dispense with provision of section 5-A of Land Acquisition Act, 1898, it was held that the mere recital in the notification under section 17 of the Act was sufficient to show the justification for dispensing with the provision of section 5-A. I am further supported in this view of mine by decision of Dacca High Court in case of kin Meah v. Deputy Secretary to Government of East Pakistan Revenue (Registration) Department, Dacca and others (2). In that case it was not stated specifically in the notification that lands were required urgently but it was held that the absence of the same in the notification does not invalidate it and the very fact that the Provincial Government thought that provision of section 5-A should not apply to the lands in quesion clearly pointed to the fact that it had formed an opinion that lands were required urgently. It was further observed that decision of Provincial Government in this regard was not subject to review by the High Court and whether an urgency exists or not, was a matter solely for the determination of the Govt. And it was not subject to review by any Court. I may further refer to case of Haji Hashmatullah and 9 others v.
Karachi Municipal Corporation and 3 others (3) in which the order of the Commissioner as controlling authority quashing the resolution of the Municipal {{FOOT NOTE}}
(1) P L 13 1973 Lah. 617 (2) PLD 1965 Dacca 30
(3) FLU 1971 Kar. 514 {{FOOT NOTE}} ' Committee under section 111 of Municipal Administration Ordinance, 1960 was held to have been passed without lawful authority on the ground that Commissioner had violated the conditions which were to be satisfied under the said section to provide justification for exercise of discretion.
However, the reasoning given visualizes that if the Commissioner had not disregarded or violated those conditions, his order being an order of executive nature passed on subjective approach by the said officer was immune from judicial scrutiny and was not open to review by a Court of law. I, therefore, respectfully agreeing with and following the ratio in the above cases, hold, that the recital by the Commissioner in the notification under section 17 (4) of Land Acquisition Act, 1894 of existence of urgency was sufficient to establish that Commissioner had in exercise of his executive functions come to form an opinion that in case of acquisition of land in the case in hand, there wasL urgency and that this opinion of his is final and is not justiceable either on the ground of validity of the reasons or sufficiency of the evidence on which said opinion was formed. The points Nos. (iii) and (iv) have thus also no sibilance in them and are, therefore, repelled.
17. The upshot of the above discussion is that there is no merit in this writ petition and the same is, therefore, dismissed with costs.